ACLU Wants New Evidence To Be Considered In Census Case Sanctions Bid

WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department... WASHINGTON, DC - SEPTEMBER 17: Acting Assistant Attorney General for Civil Rights John Gore speaks at the Justice Department September 17, 2018 in Washington, DC. Attorney General Jeff Sessions spoke about Department of Justice efforts to support free speech on college campuses at the event. (Photo by Aaron P. Bernstein/Getty Images) MORE LESS

The ACLU wants a federal judge to consider “crucial” new evidence as the group pursues sanctions against the Trump administration for withholding key documents in the litigation over the census citizenship question.

The newly released evidence is communications that Mark Neuman — an outside advisor to Commerce Secretary Wilbur Ross on census issues — turned over to the House Oversight Committee. The committee made the new evidence public this week.

The ACLU alleges that the new evidence shows additional instances in which the Trump administration withheld documents and “misled” the ACLU and the court.

“Neuman produced documents and communications to congressional investigators that were highly relevant to this case but somehow went undisclosed in litigation,” the ACLU said in a court filing Thursday.

Neuman’s emails and texts suggested that Thomas Hofeller, a now-deceased GOP gerrymandering expert, was more involved in the attempted census change than was previously known. Additionally, the committee interviewed a Census Bureau official who had been in touch with Hofeller. The official in the interview described Hofeller telling her that a citizenship question would help “the Republican redistricting effort,” according to a committee report released Tuesday.

A key issue in the litigation was whether the administration’s stated reason for adding the question — allegedly to enhance Voting Rights Act enforcement — was bogus. The Supreme Court ultimately ruled that that the VRA justification was a pretext for adding the question, making Ross’ 2018 move illegal.

Files found on Hofeller’s back-up computer drives suggested he had ghostwritten the VRA enforcement rationale. The files also showed that Hofeller wrote a secret 2015 study concluding that a census citizenship question would be needed to overhaul redistricting in a way that boosted Republicans while diminishing the political power of Latinos.

However, the ACLU did become aware of the census-related Hofeller files until after the Supreme Court heard the case. The group — which was among those challenging the question in New York — is asking U.S. District Judge Jesse Furman to sanction the Justice Department as well as certain individuals in the administration for not turning over evidence that would have shed light on Hofeller’s involvement.

The Neuman communications released by the committee showed that he sent a draft request for the question to Hofeller and that Hofeller responded that his business partner reviewed it.  Neuman, weeks later, sent via text message a draft request to John Gore, a then-DOJ official who authored the formal DOJ request for the question.

The ACLU is asking permission to file what’s known as a sur-reply. The proposed sur-reply points out the various discrepancies between the freshly released communications and what the administration officials claimed about their discovery production.

The ACLU pointed specifically to Gore’s claim he did not use personal text messages, as well as his claim that he only received a paper version of a draft request from Neuman. The texted draft differed from a separate Neuman document that was previously turned over in discovery.

“Gore did not, as he testified in this case, write the initial draft of the DOJ request letter as he claimed in his deposition,” the ACLU’s filing said. “Rather, he received at least two separate drafts from Neuman, both of which included Hofeller’s VRA enforcement rationale.”

The Neuman communications also included a text message from Pete Davidson, a Commerce Department lawyer, that suggested Davidson was aware that Neuman had met with Gore around the time Neuman texted Gore the draft request. The text also suggested that Davidson gave a readout of the meeting to Ross.

Davidson failed to produce that text in discovery, the ACLU said, and the communication “also raises substantial questions” about Davidson’s
claim to the court he “was unaware” that Neuman “had in his possession a draft letter concerning a citizenship question.”

When the committee released the Neuman texts on Tuesday, the Commerce Department accused the lawmakers of engaging in a “PR stunt primarily intended to malign senior officials in the Trump Administration.”

“The Commerce Department has cooperated in good faith with the Committee,” a Commerce Department spokesperson said on Tuesday.

Read the ACLU’s filings below:

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